Classification Act amendments

The Broadcasting Services Amendment (Online Services) Bill 1999 contains an
insidious little section which has been almost completely neglected by those
fighting against its passage:

21(2) To avoid doubt, sections 10, 19, 20, 22, 25, 26, 27 and 28 of the Classification (Publications, Films And Computer Games) Act 1995 do
not apply to a classification under this Schedule.

Section 21(2) of the BSA explicitly says that various sections of the
Classification Act DO NOT apply to Internet content. Let's see
what that means:

Classification decisisons won't need to be made in writing
(section 10) (Note: a previous version of this page confused this with an application for a classification. Re-reading revealed that it's the classification itself. The lack of written evidence regarding a classification here is extremely disturbing;

The Classification board won't be allowed to decline to deal with a
classification application on the grounds that it can't see the an
unfettered copy of the material in question (Section 19);

No consumer advice needs to be provided due to a classification decision
(which is fair enough - how would such advice be conveyed to a user
anyway?) (section 20);

Content may be still classified if it contains advertisements for
unclassified content or content with a higher classification (Section 22)
(if this was left in, the ABA woudln't be able to get a porn site
classified until after they'd classified all the banner ads, a task
which would get recursive very quickly);

The OFLC director need not issue a classification certificate for content
which has been classified (Section 25). Combine this with section 10
and there may be no publically-accessible record of an OFLC
classification at all!

The OFLC director need not tell the ABA the results of a classification
decision - Bizarre, eh? (Section 26);

Nobody may apply to the OFLC to obtain information about classifications
(section 27);

OFLC decisions may take effect on an undefined date (Section 28) -- probably whenever the ABA feels like it.

The lack of notification and reporting required by the OFLC as a result
of section 21(2) of the BSA is truly frightening. The fact that the OFLC
has no grounds to decline to classify if they aren't provided with an
unfettered copy of the material in question is patently ridiculous.

I'm especially concerned by what will happen if someone is prosecuted
for hosting content which was prohibited because the OFLC wasn't provided
with context when it was forced to provide a classification, and the
defendants are unable to tender a classification certificate to prove
their innocence because the OFLC hasn't been required to write one.

For all the noise Alston has made about bringing the 'net in line with
other forms of media (which ignores the fact that the 'net isn't media
anyway), it seems strange that the BSA forces the OFLC to operate
in a manner which is totally different to its normal activities when
Internet content is in question. Alston's hatred of the Internet
couldn't have been made more obvious.

When I pointed this out, the conversation moved on to interpretation and
appeals. The NOIE advisor pointed to section 46 of the Acts Interpretation Act, and said that due to the inclusion of that reference the AAT would
be sympathetic to an appeal if an access prevention notice placed an
undue burden on ISPs. But section 46 doesn't say that at all: As I read it, it limits
Government authorities (such as the ABA) to only generating legal
instruments which are within their power as defined by the parliament
(so that, for example, the ABA can't punish you for speeding). In this
case, the parliament has been quite explicit in its intention that
the ABA should be able to ban almost anything at all on the net, as long as
it has been subjected to a complaint at some point in the past, and if
that's an undue burden on industry than so be it.

The way the bill currently stands at the moment, every ISP in Australia
would become liable for fines if the ABA ever issues one access
prevention notice. The ABA would then be able to pursue prosecution
against any ISP it pleases; ISPs would either have to pay the fines,
or engage in lengthy and expensive legal proceedings to prove that compliance
with the access prevention notice is economically unviable or technically
infeasible. The potential for political abuse of this unprecedented
censorship law is beyond belief. The onus of proof is on the defendent; What kind of law is
this?

I have invited the NOIE person to supply a statement representing NOIE's
official position on this matter, and I will publish it on this web page
if it's ever forthcoming. Meanwhile, the dialogue continues (one
hopes).